Author

Adam J. White

Justice Ruth Bader Ginsburg made news recently, when she said—bragged, it seemed—that she and her fellow liberals on the Court were going out of their way to stifle their individual voices in high-profile cases. When the liberals find themselves on the losing side of a case, she explained, they strive to sign a single dissenting opinion instead of each justice writing his or her own.

"If you want to make sure you're read, you do it together, and you do it short," she told NPR's Nina Totenberg, a longtime friend. When Totenberg asked Ginsburg why the Court's conservatives don't take a single approach, Ginsburg quipped, "next term I think you'll see some of my colleagues will be more disciplined."

Maybe the conservative justices would score more political points with such an approach. But our country would be all the worse off for it. For as things currently stand, the Court's conservative or libertarian justices are writing in such distinct voices—with such distinct principles, presumptions, and prudential judgments—that our nation's constitutional debates hardly suffer from hearing each of the conservative and libertarian justices speaking for themselves as much as possible. We all benefit from them.

Their conversation ranges from Alito's upbringing in New Jersey, to his education at Princeton and Yale Law School. Then, refusing to allow his Yale legal "education" to hold him back (I kid ... somewhat), he served in a variety of posts in the Reagan Justice Department, before his appointment to the U.S. Court of Appeals for the Third Circuit and, finally, to the Supreme Court.

But perhaps the most interesting and immediately relevant part of their talk pertains to Justice Alito's view of constitutional "liberty" and the federal courts' role in defining and enforcing it.

He foreshadows this theme early in their conversation, in describing his youthful interest in the writings of the late Alexander Bickel, author of such books as The Supreme Court and the Idea of Progress (1970):

KRISTOL: And I’ve read that you read some works of the great Yale Law professor, Alexander Bickel, before you went to Yale Law School. Is that – ?

ALITO:I did, yeah. The book that, the first book of his that I read was called The Supreme Court and the Idea of Progress, which came out while I was in college. And as I said, I had been thinking about this issue of what would make a constitutional decision legitimate if it wasn’t based very clearly on the text of the Constitution, or something else that was fixed. The orthodoxy at that time was that aside from a few questions that were settled by the text, judges and Justices were really not finding the law in any sense, there was not an objective law for them out there to find.

This was – the orthodoxy was still very much under the spell of the legal realists who said what judges are doing is really implementing their own policy preferences although they dress it up in fancy language. If you start with a premise like that, what would make a decision legitimate, and that was what Bickel had begun to address earlier. But so he began as really, as a defender of the Warren Court, which was a very un-theoretical court.

They, I think, they reflected the personality of Chief Justice Warren, who was a practical kind of Republican progressive reformer, so he had a very clear idea of what good policy was and he used the power of the judiciary to implement that policy, but neither he, I think, nor most of the other Justices who were with him in the big Warren Court decisions – with the exception of Frankfurter, who became a dissenter – but for the most part, they did not seem to worry very much about the theoretical justifications for what they were doing.